Failure to Protect
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ASFA: Filled With Loopholes and Exceptions By Elizabeth Bartholet
Bartholet argues that ASFA has many loopholes and that it does not go far enough to ensure children's safety. A professor at Harvard Law School, Bartholet writes that "ASFA may have left too much room for those in the child welfare system who are committed to family preservation to resist and evade [the law's] apparent purpose."

From Nobody's Children: Abuse and Neglect, Foster Drift, and the Adoption Alternative (1999), by Elizabeth Bartholet. Reprinted by permission of Beacon Press, Boston, Mass.

ASFA is filled with loopholes and exceptions which could potentially undermine Congress's apparent intent. It's understandable that Congress would have wanted to leave the states plenty of room to decide how to administer their child protection systems. This has traditionally been an area for state and not federal regulation. But ASFA may have left too much room for those in the child welfare system who are committed to family preservation to resist and evade ASFA's apparent purpose.

On one level ASFA reads as if it is intended to create a new regime, one in which states are required by federal law, at least if they went to keep their all-important federal funding, to move to terminate parental rights in cases of egregious parental misconduct or serious dysfunction, and in cases in which children have been in foster care for fifteen of the most recent twenty-two months. But these tough-sounding TPR provisions apply only if the state chooses not to preserve the family. ASFA allows the state not to make reasonable efforts to preserve families in certain cases, but it does not forbid the state from making such efforts in all cases. States have leeway under ASFA not to make reasonable efforts to preserve or reunify families in certain egregious cases specified in the law, and in "aggravated circumstances'' that states can spell out in their own laws, but for this leeway to mean anything, state legislation would have to permit this also; state child welfare workers would have to decide not to pursue reasonable efforts and state judges would have to make findings that this was appropriate. If states want to make efforts to preserve families in all cases, including those egregious cases listed in ASFA, they can. The provisions requiring states to file TPR petitions in certain egregious cases, and when a child has been in foster care for fifteen out of twenty-two months, apply only if the state has already intervened, removed the child, and presented the case to a court so that the court can make the requisite findings triggering the requirement to file the TPR petition.

In addition, the Act lists three exceptions which threaten to swallow entirely its TPR mandate:

  • The kinship exception. The TPR requirements do not apply if the child is being cared for by a relative. Again it's understandable that Congress would have created some kinship exception. Kin will sometimes provide the best placement for a child, and will sometimes have legitimate reasons for not wanting to formally adopt the child, even if there is no reasonable likelihood that the child will or should ever return home. Making kin the permanent guardians, rather than the adoptive parents, will sometimes be the best solution. But ASFA makes no attempt to limit the state's discretion here. There is no requirement, for example, that the state make a finding, or make a showing to the court, that it is preferable from the child's viewpoint to keep the child in foster care with a relative than to place the child in a permanent adoptive home. One-third of all foster children today are in kinship care; in many urban areas at least one-half are. ... For all these children, ASFA's tough sounding TPR provisions are essentially inapplicable. States can consider adoption as an alternative for these children, but ASFA does not require that they do so even when the kinship care is marginal, and adoption would be far preferable from the child's perspective. States can encourage kin foster parents to consider adoption, but ASFA does not require that they do so. Given the popularity of kinship care among child welfare professionals, and given their traditional reluctance to terminate parental rights, one has to wonder whether ASFA will have any real impact in encouraging states even to consider terminating the parental rights of those whose children are in kinship care. Instead the act may simply motivate workers to expand the use of kinship foster care, so as to avoid having to deal with the new TPR requirements.

  • The bureaucratic failure exception. The TPR requirements also do not apply if the state has not provided the child's family in a timely manner "such services as the State deems necessary for the safe return of the child to the child's home," in cases in which reasonable efforts to preserve or reunify the family are required. Again it's understandable why this provision is here. It seems unfair to take children away from parents who might be able to function as adequate parents if only they received certain services from the state. But there's a risk that this exception will swallow the new TPR rule. The problem is that the state typically does not provide adequate and timely reunification services. Child welfare agencies are notoriously underfunded and overburdened. Appropriate services are often unavailable or, if available, they are costly and agencies have not been given the funds to pay for them. We have had experience for two decades with laws and policies which, like this bureaucratic failure exception, use children as hostages to try to gouge family support services out of state legislatures and state welfare agencies. States have been told for two decades that if they don't provide the requisite services, then they may not be able to remove children from the families where they are suffering abuse and neglect, or terminate parental rights so that children can be adopted. It turns out that punishing children for the sins of the state doesn't have much of an impact on the sinning state's conduct. States still fail on a systematic and widespread basis to provide the services that they are supposed to provide.

  • The best interests of the child exception. Even if the other two exceptions don't apply, the state can escape ASFA's TPR requirements by "documenting in the case plan (which shall be available for court review)" a "compelling reason" for determining that TPR would not be in the best interests of the child. Again this exception is understandable, and this one is at least defined in a way that implies some limits. But it's not clear they will be meaningful. Social workers can easily document a compelling reason in the sense that they can lay out their claim for the importance of not terminating the parents' rights. Nothing in the Act's language requires meaningful court review or court findings that a compelling reason actually exists. So the exception lies there ready to be exploited by workers opposed to TPR, in all cases for which no more obviously appropriate exception is available.

    This exception's reference to the child's best interests may also increase the risk that the other two exceptions, in which no such language appears, will be interpreted as not requiring consideration of the child's best interests.

»Programmatic Limits

1. The Safety and Permanency Mantras of the Day

Children's well-being is -- or ought to be -- the central concern. We want children growing up in homes in which they can be happy and thrive. We don't want them simply to survive. It is essential not only that they be free from destructive abuse, but that they receive affirmative nurturing. It is essential not only that they be spared damaging disruption and get permanent homes, but that they get the kind of permanent homes likely to provide true parenting. If well-being is the issue then we have to worry about abuse and neglect. We have to worry about the children growing up in households where because of substance abuse or other reasons the parents are simply not functioning as parents much of the time, whether or not they beat the children or sexually exploit them. If well-being is the issue we have to focus on the quality of the permanent home we provide. And we have to recognize that adoption generally gives children a form of committed, nurturing parenting that is often absent in other permanency arrangements.

However, safety and permanency are the accepted mantras of the day. Child welfare traditionalists have been willing to concede that we owe children this much. And those interested in changing the system to make it more child-oriented have settled too readily on this common ground. ASFA -- today's most significant challenge to the family preservation tradition -- illustrates the kind of compromise that conflicting forces in today's child welfare field have been able to reach. It is a compromise that stops far short of giving children what they need.

Those who initially promoted ASFA's passage talked a lot about children's well-being. But as the legislative language went through the fires of debate and deal-making, well-being lost out to safety. It is the "Adoption and Safe Families Act," and safety appears throughout its various provisions, defining the Act's central goals. The Act starts by redefining the reasonable efforts mandate to make the child's "health and safety" the paramount concern, and goes on to define family reunification as enabling the child "to safely" return home. The Act's specific provisions permitting states not to make efforts to preserve the family in certain cases, and mandating states to file TPR petitions in a closely related set of cases, are limited to cases involving abandonment, prior TPR, and the various forms of egregious maltreatment set forth above (torture, chronic abuse, sexual abuse, murder, voluntary manslaughter, and felony assault resulting in serious bodily injury).

The emphasis is on abuse, with no mention of neglect, even severe or chronic neglect. States are relieved from making reasonable family preservation efforts when the parent has subjected the child to "aggravated circumstances" as defined in state law, but the state is not encouraged by the statutory language to define those circumstances to include severe forms of neglect. ASFA says only that the state law definition may include but need not be limited to "abandonment, torture, chronic abuse, and sexual abuse."

There is no mention of what should be done for children whose parents are incapacitated by substance abuse and unable to provide the most basic physical and emotional care. But since ASFA says nothing, presumably the states are still required to make reasonable efforts to preserve these families, unless they take the affirmative step of defining "aggravated circumstances" to include severe and chronic neglect and emotional abuse. ASFA mentions drugs only in the context of requiring a study of the drug problem.31 This passed the buck in a major way.

Despite its name, the Adoption and Safe Families Act seriously compromises the adoption goal by making "permanency" its focus and treating adoption as only one of various acceptable permanency options. Thus the Act requires "permanency" plans and efforts to make "permanent" placements, and seems in one place to equate placement for adoption with placement with a permanent legal guardian, and in another to equate adoption with all other permanent arrangements. While the Act's title and the adoption bonuses it offers might be seen as modest signals that adoption should be considered the preferred permanency option, all other things being equal, all other things are never equal, and modest signals can be overlooked by those who are not already motivated to go in the direction they point. Giving children permanency in their homes of origin or in their kinship or other foster homes may not give them the kind of homes they need.32

2. Expedited Termination of Parental Rights

Expediting the termination of parental rights in cases where it is unlikely that the children will or should be returned home makes obvious sense for the children, minimizing the risk of further damage, and maximizing the chances for them to attach and flourish in new adoptive families. When parents subject their children to deliberate torture or to other forms of severe intentional harm, immediate TPR seems appropriate. It seems similarly appropriate when parents are so caught up in their drug or alcohol addiction that they are unable to function as parents and are unable or unwilling to engage in treatment.

While there is a lot of talk about expedited TPR today, reform initiatives are quite limited. Few propose immediate termination, even in the most egregious cases. The general assumption is that efforts to preserve families should still be made but should not be as prolonged. As noted above, ASFA goes only so far as to allow states not to make reasonable efforts in egregious cases, but does not prevent them from doing so, or require that TPR take place. A study done for the ABA found that state law often did not permit expedited TPR, even in the most egregious cases, requiring instead that extensive efforts be made to rehabilitate the parents before the children could be freed for adoption.33

The ABA study found further that none of the states that did permit expedited TPR included an adequate set of grounds in their TPR statutes. Finding no model law in existence, the ABA report set out a list of grounds that states should include in amended TPR legislation:

  1. Despite diligent and appropriate or reasonable efforts by the child protection agency, the parent has failed to make the necessary improvements for the child's safe return.

  2. There exists a long-standing pattern of abandonment or extreme parental disinterest.

  3. There is a projected long-term parental incapacity to care for the specific child based upon mental or emotional illness, mental retardation or physical incapacity.

  4. There is a drug or alcohol related incapacity or unwillingness to care for the child, with a past history of repeated, unsuccessful efforts at treatment.

  5. There has been prior abuse or neglect of the child, a sibling, or other children in the household, with diligent but unsuccessful agency efforts to rehabilitate the parent.

  6. The neglect or abuse of the child was so extreme that returning the child home presents an unacceptable risk.

  7. As a result of the prior abuse or neglect, the child has developed a deep aversion or pathological fear of the parent.

  8. The parent is sentenced to prolonged imprisonment, and will be unavailable during an extended period of the child's minority.34

This list provides an extremely modest starting point for state legislative reform. While some states, perhaps most notably California, have taken action in recent years to establish new grounds for TPR, most states have a long way to go to meet even the ABA report's standard. Few states have begun to seriously address the problems of substance abuse and chronic neglect. Few have begun to adequately define the cases in which expedited termination is appropriate, and the procedures to make this meaningful, so that children who should not be kept in or returned to their homes of origin can be moved promptly on to adoptive homes. ...

3. Concurrent Planning

Concurrent planning programs similarly facilitate earlier placement than the traditional system, but stop far short of the kind of fundamental reform needed. They are generally targeted to only a limited subset of foster care cases -- those of relatively young children who are highly unlikely to return home because of the extreme nature of the abuse and neglect they suffered, and their parents' insufficient capacities for future nurturing, as judged by today's child welfare standards. This leaves out many serious cases in which, though it is unlikely the children will ever return home, no steps will be taken to prepare the way for adoption until and unless the usual "reasonable efforts" have failed. At the same time it's questionable whether we should be doing concurrent planning at all in the most egregious subset of cases. Many of them should be considered good candidates for immediate TPR and adoptive placement, instead. But proponents argue that concurrent planning is appropriate in cases in which:

  • "Parent has killed or seriously harmed another child through abuse or neglect and no significant change has occurred in the interim;"

  • "Parent has repeatedly and with premeditation harmed or tortured this child;"

  • "Parents' only visible support system and only visible means of financial support is found in illegal drugs, prostitution, and street life.

  • "Child will be abused or neglected by parents or parents' companions, or will be essentially abandoned in foster care while parents continue their illegal lifestyle."36

Clearly it makes sense in cases like these not to hold the child for years before beginning to plan for adoptive placement. But does it make sense to pursue family reunification at all, and to keep the adoption plan on hold pending the outcome?

Concurrent planning's potential is also limited by the narrowness of today's system of selecting adoptive parents. The system typically looks to the foster parent as the preferred adoptive parent, assuming that the family reunification goal is not achieved. There is an advantage in selecting the foster parent, in that it allows the child to stay in the same home rather than suffering an additional disruption. But ... foster parents are typically recruited on a narrow basis, with strong preferences given to those from the same community and to kin. These preferences may or may not make sense in the context of short-term foster care, depending on the circumstances of the case and whether social workers assess these factors in an absolutist way rather than weighing them against other important factors. But these preferences are generally much less appropriate for foster care which transforms into permanent adoption. It makes sense to try to keep a child in his neighborhood and his community if he will shortly return home, whereas if he is not likely to return home, it may be well worth it to go through the kind of disruption involved in relocating, in order to find parents who will provide the best nurturing environment for all his remaining childhood. For concurrent planning to truly serve children's interests, we need to radically revise the system by which we recruit and assess the fost-adopt parents, reaching out to include the broad group of middle-class, relatively privileged people who are more typically involved in adoption than in foster care. We may not want to favor that group, but it seems odd, and unfair to the children in need of homes, to exclude from consideration the very people who are now volunteering to parent in the adoption world, and who have the resources generally thought helpful in facilitating parenting. It seems particularly irrational given the regularly repeated complaints about the difficulty of finding qualified foster parents, and related claims made as to the need to increase fostering stipends to attract more foster parents to the dwindling pool. ... [T]here are lots of reasons to worry about the overall quality of the current foster parent group. Concurrent planning will not work as it should for children unless those in charge are willing to radically rethink the recruitment of parents for these programs.

»Bureaucratic Resistance and Legal Evasion

Bureaucratic change comes hard. Legislatures have limited tools with which to force change upon resistant bureaucrats. Congress's classic tool has been the threat to withhold funds from state child welfare systems. But this is a threat that has rarely been realized, for understandable reasons. Withholding money from the systems which provide children with protective services in their homes, as well as with foster care and adoption services, is a hard thing to do in the name of protecting children, even if the goal is to force child welfare agencies to act in a more protective manner. The greatest threat to the new proadoption movement has to do with the thinking of the people who run and staff the child welfare system, and the people who design and implement new child welfare programs. ... [T]hese people are overwhelmingly committed to the family preservation tradition and have demonstrated an impressive ability to resist demands for change. ...

[ASFA] was obviously intended to bring about fundamental change. For all the loopholes and limitations, there is no mistaking ASFA's basic demand that a shift be made from the traditional emphasis on family preservation to a new system in which child safety and adoption are given much greater priority. ASFA may function as one among a number of forces that will transform the thinking of the nation's child welfare professionals and policy makers. But until and unless that happens, there's no reason to believe that ASFA itself will have much impact on the workings of the child welfare system.

Those resistant to ASFA's mandate can simply take advantage of the loopholes and limitations written into the letter of the law to defy its spirit. They can also easily do end runs around the law, promoting programs which allow them to avoid its provisions altogether.


31. The Secretary of the U.S. Department of Health and Human Services is required to submit a report on substance abuse issues in child welfare as well as on kinship care.

32. The new "Expedited Permanency Planning" program in Colorado, discussed in text at n. 26 above, may help illustrate the meaning of the new permanency focus. This program sets permanency within 12 months of removal from home as the goal, and uses concurrent planning, and recruitment of fost-adopt and relative homes as methods. An early report on implementation indicates that it has doubled adoption rates, but this means pushing them from only 4 percent to 8 percent, while sending 66 percent home, giving custody of 6 percent to another parent, and placing 17 percent with relatives. Patricia Schene, "Expedited Permanency Planning in Colorado: A Preliminary Evaluation of Implementation in Jefferson and Boulder Counties," report on initial findings presented to the Colorado Department of Human Services and the Colorado State Legislature (October 1996), at 37.

33. See Hardin and Lancour, Early Termination of Parental Rights, at 2.

34. Ibid, at 11.

36. Linda Katz and Chris Robinson, "Foster Care Drift: A Risk-Assessment Matrix," Child Welfare 70, no. 3 (May/June 1991), at 349-350.

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